Dealing a blow to Barnes & Noble’s defense vs. Microsoft in a closely watched patent case, an International Trade Commission administrative law judge today issued a preliminary ruling against the bookseller’s argument that Microsoft’s initiative to collect royalties from makers of Android devices amounts to “patent misuse.”
Patent blogger Florian Mueller has details in this post. The ruling appears to weaken B&N’s case going into a trial set for next week.
The bookseller has alleged that Microsoft’s Android patent campaign violates antitrust law, and it previously retained David Boies, the lawyer who represented the U.S. Justice Department in its landmark antitrust case against Microsoft, to represent it in the case.
A Barnes & Noble spokeswoman declined to comment on the ITC judge’s ruling. Microsoft issued this statement from David Howard, its corporate vice president and deputy general counsel for litigation.
“Today’s action by the ITC makes clear that Barnes & Noble’s patent misuse defense was meritless. This case is only about one thing – patent infringement by Barnes & Noble’s Android-based devices. We remain as open as ever to extending a license to Barnes & Noble, and invite them to join the many other major device makers in paying for the Microsoft-developed intellectual property they use in their devices.”
Microsoft, which contend that Android violates its intellectual property, sued Barnes & Noble after attempting to reach a licensing deal. Barnes & Noble has called Microsoft’s proposed patent royalties outlandish. The Redmond company says it has patent deals with Android device makers representing 70 percent of Android smartphones sold in the U.S.